Henton T. Clemmons, Jr., Employee, Petitioner,
Lowe's Home Centers, Inc. -Harbison, Employer, and Sedgwick Claims Management Services, Inc., Carrier, Respondents. Appellate Case No. 2015-001350
September 21, 2016
OF CERTIORARI TO THE COURT OF APPEALS Appeal from the
Workers' Compensation Commission
Preston F. McDaniel, of McDaniel Law Firm, of Columbia, for
F. Hiser, of Mount Pleasant, and Kelly F. Morrow, of
Columbia, both of McAngus Goudelock & Courie, for
W. Beatty C.J., John W. Kittredge J., Kaye G. Hearn J., Costa
M. Pleicones A.J., James E. Moore A.J.
filed a petition for rehearing and Petitioner filed a return
in opposition. After careful consideration, we deny the
petition for rehearing, withdraw the former opinion, and
substitute the attached opinion in its place.
Henton T. Clemmons, Jr. injured his back and neck while
working at Lowe's Home Center in Columbia and brought a
claim for disability benefits under the scheduled-member
statute of the South Carolina Workers' Compensation Act
(the Act). Although all the medical evidence indicated
Clemmons had lost fifty percent or more of the use of his
back, the Workers' Compensation Commission awarded him
permanent partial disability based upon a forty-eight percent
impairment to his back. The court of appeals affirmed.
Clemmons v. Lowe's Home Ctrs, Inc.-Harbison, 412
S.C. 366, 772 S.E.2d 517 (Ct. App. 2015). We now reverse and
hold the Commission's finding of only forty-eight percent
loss of use was not supported by substantial evidence.
September 2010, Clemmons was assisting a customer at
Lowe's when he slipped and fell, severely injuring his
back. Clemmons visited neurological specialist, Dr. Randall
Drye, and was diagnosed with a herniated disc which caused
severe spinal cord compression and necessitated immediate
surgery. Dr. Drye removed Clemmons' herniated disc and
fused his C5 and C7 vertebrae by screwing a rod into his
spine. After surgery, Clemmons underwent extensive inpatient
and outpatient physical rehabilitation; however, he continued
to experience pain in his neck and back, as well as
difficulty balancing and walking.
filed a workers' compensation claim to recover medical
expenses and temporary total disability benefits. Lowe's
admitted Clemmons had suffered an accepted, compensable
injury in the course of his employment and agreed to pay
temporary total disability benefits until Clemmons reached
maximum medical improvement (MMI) or returned to work.
2011, Dr. Drye determined Clemmons had reached MMI and, per
the AMA Guides to the Evaluation of Permanent Impairment,
Fifth Edition (AMA Guides), assigned Clemmons a
whole-person impairment rating of twenty-five percent based
on his cervical spine injury, which converts to a seventy-one
percent regional impairment to his spine. Dr. Drye also
determined Clemmons could return to work at Lowe's
subject to certain permanent restrictions. A few months
later, Lowe's agreed to accommodate Clemmons'
restrictions and permitted him to return to his previous
position as a cashier.
2012, Dr. Drye conducted a follow-up evaluation and reached
the same conclusion he had a year earlier-that Clemmons had
reached MMI and required the same permanent work
restrictions. Thereafter, Lowe's requested a hearing
before the ...